Parties in 3M Combat Arms Earplugs Lawsuits Push for Single-Track Litigation

Published on July 9, 2019 by Sandy Liebhard

Lawyers representing plaintiffs and defendants in hundreds of lawsuits involving the 3M Company’s Combat Arms Earplugs, Version 2, are urging a federal judge to allow individual personal injury claims and class action complaints to proceed on a single litigation track.

The 3M Company currently faces more than 1,000 lawsuits over its allegedly defective military earplugs. Earlier this year, all federally-filed 3M Combat Arms Earplugs lawsuits were centralized before a single judge in the U.S. District Court, Northern District of Florida, for coordinated discovery and other pretrial proceedings.

In a motion filed with the Court in May, attorneys representing plaintiffs in consumer class actions asserted those cases should be litigated separately from personal injury claims for service-related hearing loss and tinnitus

Memos Deny Need for 2-Track Litigation

But in a Memorandum submitted to the Court on July 1st, attorneys serving in various Plaintiffs’ Leadership positions insisted separate tracks were not necessary.

“In order to ensure meaningful consideration of the scope and purpose of any proposed classes, Plaintiff Leadership should retain responsibility for proposing and defining those classes,” they wrote. “To the extent that Lynch argues that a separate leadership track is necessary due to differences between the relief and discovery Lynch seeks and the relief and discovery PI Plaintiffs seek, that argument fails, as Lynch and PI Plaintiffs all seek relief for prospective monitoring costs, and discovery into the diagnostic tools and criteria attendant to such relief.”

The 3M Company’s attorneys also made their opposition clear in a separate Memorandum filed with the Court on the same day.

“Discovery and other pretrial proceedings will equally benefit the individual actions and the putative class cases,” they stated. “Indeed, establishing a separate track for the putative class actions would only complicate matters and result in duplicative and overlapping efforts.”

CAEv2 Standard Issue from 2003 through 2015

From 2003 through 2015, 3M Combat Arms Earplugs, Version 2 (CAEv2) were standard issue for all United States’ active duty military personnel participating in live-fire training exercises or deployed to combat operations around the world.

The CAEv2 design was developed by Aearo Technologies, Inc., which won an exclusive contract to provide the military earplugs to the U.S. Defense Logistics Agency in 2002. The 3M Company took on that contract after acquiring Aearo in 2008.

Combat Arms Earplugs, Version 2, featured a reversible design that allowed the wearer to choose an appropriate level of protection for their current situation. The green end blocking all sound, similar to a traditional earplug. The yellow end was intended to protect the eardrum from concussive sounds commonly encountered in combat, while allowing the wearer to hear battlefield commands and other low-level noises.

Design Defects Alleged in 3M Combat Arms Earplugs Lawsuits

But according to hundreds of 3M Combat Arms Earplugs lawsuits now pending in courts around the United States, the CAEv2 design was defective and left thousands of servicemen and woman unprotected on the battlefield. Specifically, these claims assert that the earplugs were too short to fit properly in certain individuals and could loosen without the wearer even noticing.

The lawsuits further charge that Aearo Technologies (later the 3M Company) was aware of these defects by 2000. But rather than correct the problems, disclose them to the U.S. Defense Logistics Agency, or provide users with instructions for mitigating the defects, the defendants allegedly manipulated test results and falsely certified that CAEv2 met all standards of the military contract.

As a result, countless active duty service members were exposed to an unacceptable risk of permanent hearing loss and tinnitus while serving in the United States military from 2003 through 2015.

3M Combat Arms Earplugs Settlement

The allegations put forth in Combat Arms Earplugs lawsuits echo those included in a whistleblower complaint recently filed by a 3M competitor in accordance with the federal False Claims Act. The U.S. Department of Justice ultimately agreed to prosecute the case, leading to a $9.1 million settlement with the 3M Company last July.

Unfortunately, the agreement did not require 3M to admit liability or provide any compensation to veterans who may be suffering from permanent hearing impairments related to the CAEv2 design. In fact, the 3M Company denies allegations raised in Combat Arms Earplugs lawsuits and rejects any assertion that CAEv2 caused or contributed to the development of service-related hearing loss or tinnitus.

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